Legal Brief Filed in Support of Judge in Stop-and-Frisk Case

By BENJAMIN WEISER

Mayor-elect Bill de Blasio has promised that on Day 1 of his administration, he would withdraw New York City’s appeal of sweeping reforms ordered by a federal judge in the Police Department’s stop-and-frisk practices.

But his election on Tuesday did not stop the legal and political maneuvering in the wake of last week’s appellate ruling, in which a three-judge panel issued a stay of the reforms and also removed the judge, Shira A. Scheindlin, from overseeing the case.

Late Wednesday, Burt Neuborne, a law professor at New York University, filed a legal brief in the federal appeals court in Manhattan on behalf of Judge Scheindlin, asking that he and a team of four other prominent lawyers be allowed to challenge the order disqualifying her from the stop-and-frisk case.

The motion called the order removing her from the case procedurally deficient, inaccurate and unwarranted, and asked that it be vacated or reviewed by the full appeals court.

The panel’s failure to give Judge Scheindlin notice and an opportunity to defend herself, the brief claims, “was not merely a breach of the norms of collegiality and mutual respect that should characterize interactions between District and Circuit judges, it is an affront to the values underlying the Fifth Amendment’s guarantee of procedural due process of law.”

Professor Neuborne said in a phone interview: “I thought when I saw the order that procedural fairness required that she at least have an opportunity to defend herself. I reached out to her and offered my services pro bono, and she accepted.”

The judge declined to comment on Wednesday.

Meanwhile, civil rights lawyers challenging the Police Department’s stop-and-frisk practices said Wednesday that they also planned to ask the full appeals court, known as the United States Court of Appeals for the Second Circuit, to review the panel’s decision.

The appeals court typically decides cases through randomly selected three-judge panels; only rarely — five times since 2008, a spokeswoman said — has the court gone “en banc,” that is, had the full court review a panel’s decision. (The court has 13 active judges.)

The lawyers said that their request for a review was also expected to focus on the panel’s criticism of Judge Scheindlin. The panel, in an order on Oct. 31, said that Judge Scheindlin “ran afoul” of the judicial code of conduct, and compromised “the appearance of impartiality” in her decision in 2007 that appeared to steer the case to herself, and for granting interviews to several news organizations this year.

Judge Scheindlin, in a short statement last week, defended herself, indicating that her actions in 2007 made procedural sense and that she had avoided commenting in the interviews about the cases before her.

Baher Azmy, legal director of the Center for Constitutional Rights, which is handling one of the two stop-and-frisk lawsuits before the appeals court, said, “By impugning the judge’s impartiality, the panel improperly cast doubt on what was an extremely rigorous and thoughtful judicial opinion by a respected jurist.”

Christopher Dunn, associate legal director of the New York Civil Liberties Union, which is handling the other suit, said that the appeal would seek the “development of a complete factual record about the judge’s actions.” This would include briefing, oral argument and “an opportunity for the judge to participate and defend herself,” Mr. Dunn said.

On Wednesday, lawyers for the two groups joined local and federal lawmakers and representatives of community organizations on the steps of City Hall, calling for the Bloomberg administration to withdraw its appeal of Judge Scheindlin’s decision.

Representative Jerrold L. Nadler of Manhattan, a Democrat, told reporters, “We urge Mayor Bloomberg to drop the appeal of the stop-and-frisk ruling and to support the much-needed reforms to this terrible policy.”

“We know the new administration is not going to carry on that appeal in the same way,” Mr. Nadler added.

Mr. de Blasio’s opposition to the city’s appeal has also played into recent legal maneuvering in the stop-and-frisk case.

Last Thursday, before the panel issued its ruling, Michael A. Cardozo, the city corporation counsel, wrote to the appeals court, asking that it accelerate the pace of the appeal. He proposed a schedule that would result in the case being decided by the end of the year, before Mr. Bloomberg leaves office.

The request drew a scathing response from the Center for Constitutional Rights, which accused the city in court papers of “a crass political move to prevent the remedy from going forward following the election.”

When the panel handed down its ruling later that day, it announced a schedule that pushed into at least next March. That schedule, of course, will become moot if Mr. de Blasio withdraws the appeal or engineers a settlement.